« Free speech at the old ballgame | Main | Rob Williams Doesn't Take Censorship of his Scholarship Lying Down »

Thursday, April 19, 2012

Arizona v. United States: Criminalizing Failure to do the Impossible

The amicus briefs in the SB1070 case are as good and interesting as in any case I have seen.   They include briefs from states, members of Congress, and law enforcement authorities on both sides.  There is also  a brief from former Democratic and Republican cabinet secretaries opposing the law.

The Brief for the Leadership Conference on Civil and Human Rights and other groups was  written in part by NYU Law students who I had the privilege of chatting with by email when they were drafting it .  One important argument they advance, which I have not seen elsewhere, is that Section 3 of SB1070 criminalizes a failure to comply with a duty under the Immigration and Nationality Act which, under the intracacies of federal law, does not in fact exist. 

Section 3 makes it an Arizona crime to fail to register with the federal government as required under 8 U.S.C. 1302(a).  Failure to register as required is indeed a federal crime.  But it is not a crime which people who enter without inspection, that is, most undocumented immigrants, can commit.  This is because the statute directs the federal authorities to promulgate forms to carry out the registration program.   They have done so, but none of those forms are directed to, or appropriate for, undocumented people to fill out.  The forms (and thus the requirements) are all aimed at people entering the United States lawfully, or who have access to some path to lawful presence.  This has been clear at least since the Eisenhower Administration promulgated a list of registration forms aimed at lawful residents and visitors.

The United States could, of course, draft and make available a form for undocumented people, and anyone who willfully failed to file would be in violation of the law.  They have not done so, possibly because they regard it as unlikely that they would get many takers, and existing legal tools and penalties are sufficient to remove and punish those here without authorization.  In addition, 8 USC 1304(d)  requires the issuance of a receipt or other immigration document to anyone who registers.  If undocumented people were subject to registration, and could register, this section implies that they would, by so doing, become legal!

The brief's punch line: "Since EWIs will have no way to comply with this phantom registration requirement, Section 3 will criminalize their presence in this country.This is in direct conflict with Congress’s decision not to criminalize mere presence. All legislative proposals to criminalize mere presence have failed." 

This little jewel of an argument  makes clear what critics of the law have been saying from the beginning: States generally do not have the knowledge of immigration law to make these kinds of subtle policy choices.  When they blunder ahead anyway, their basic purpose is not to help carry out the federal program, but to go beyond it, to impose punishments, restrictions and requirements that Congress and the officials designated by Congress to carry out the law have chosen not to.

Posted by Jack Chin on April 19, 2012 at 09:15 PM in Constitutional thoughts, Criminal Law, Immigration | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Arizona v. United States: Criminalizing Failure to do the Impossible:


If 1302 isn't applicable to undocumented workers, doesn't that mean they can't be prosecuted for non-compliance under 1070? For example, setting aside the federalism concerns, a state law making it a crime for every non-lobbyist to violate the registration requirements for lobbyists would apply to a set of precisely zero people.

So yes, poor drafting, but a self-defeating constitutional argument, no?

Posted by: AndyK | Apr 23, 2012 11:34:58 AM

I wish someone would take a look at Louisiana Revised Statute 14:100.13. This statute - bootstrapped onto a response to 9/11 - makes it a FELONY for a person with 'unlawful presence' to drive in Louisiana. Cross-examining the officers leads one to the conclusion that they don't understand immigration law either. The 'secretary' was supposed to designate exactly what 'documentation' satisfies the statute, but to my knowledge, that has not happened. The 4th circuit (New Orleans) held the law unconstitutional and our Sup Ct denied writs. The 1st circuit (Baton Rouge and surrounding parishes) has repeatedly upheld the law, also with our Sup Ct denying writs.

I've argued that the true purpose of this prohibition was to make those arrested guilty of an 'aggravated felony' for removal purposes, thereby subjecting them to higher priority for Immigration holds. That concept has been refined since then but...

I've literally had a case where a 'native' drunk driver hit a hispanic driver and while he was charged with a misd. (DWI), she was charged with a felony (i call it driving while mexican). I'm hoping with the Farmers' Branch decision and whatever the Sup Ct says in Arizona's case can finally get this law overturned.

Posted by: Shawn | Apr 21, 2012 8:52:26 AM


Posted by: summer | Apr 20, 2012 8:47:29 PM

Thanks for the interesting article, the Arizona immigration laws are currently quite the hot topic. I think that despite the anti-immigration arguments many Americans try to defend, there are not many Americans vying for the dish washing jobs, and much of our economy is aided by the work done by immigrants. I agree it is not the fault of immigrants who were not inspected, and it seems backwards that they should be sent back home after establishing a life and doing the labor intensive work in this country that no one else wants to do.

Posted by: Mandy | Apr 20, 2012 5:29:53 PM

I quite agree. SB1070, in general, was sloppily drafted, a botch job.

Posted by: Jack | Apr 20, 2012 5:06:49 PM

Thank you, Professor Chin, for highlighting this argument.

It’s almost as if Arizona is legislating in a time warp. While Section 3 does not “parallel” today’s federal registration scheme, arguably it parallels the scheme of the 1940’s and 50’s, when the federal government was primarily concerned with identifying and deporting Communist sympathizers. But, as you point out, the concept of a comprehensive affirmative registration requirement in 2012 is anachronistic.

It seems that Arizona is trying to finagle back-door criminalization. Most EWIs, while subject to civil removal proceedings, are simply not subject to criminal penalties under the federal scheme. Although illegal entry constitutes a misdemeanor, it is governed by the federal five-year statute of limitations. That means that the 90+% of unauthorized immigrants who entered before 2005 are not chargeable under this provision. Dissatisfied with a mostly civil federal immigration system and in the name of “attrition,” Arizona has plucked vestigial language from the 1940 Alien Registration Act in order to create its own permanent criminal dragnet for EWI’s.

Posted by: Jordan Wells and Natasha Rivera-Silber | Apr 20, 2012 4:54:48 PM

DrGrishka, I agree that the undocumented non-citizen's rights claim is weak or non-existent. The argument has to be based on a state's lack of power to regulate immigration under their inherent powers.


Posted by: Jack | Apr 20, 2012 12:42:17 AM

Very interesting. I wonder though (assuming that the amicus has the federal law right) whether an argument that SB 1070 criminalizes presence not in the United States, but in the State of Arizona by someone who has no authorization to be there could be successful. Sure, Congressional proposals to criminalize mere presence everywhere in the country have failed, but that's not what Arizona does (or can do). I don't think that that is a particularly strong argument in light of constitutional right to travel, but perhaps the answer to that is that that right does not extend to illegal immigrants who have no right to be in the country in the first place (irrespective of criminal penalties).

Posted by: DrGrishka | Apr 19, 2012 11:20:53 PM

The comments to this entry are closed.